United States District Court, D. New Jersey
MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE.
se Petitioner Monique Kendall initiated this § 2254
habeas action on November 17, 2017. (ECF No. 1.) Petitioner
filed her operative habeas pleading on or about March 9, 2018
(the “§ 2254 Petition”). (ECF No. 3-1.)
Respondents now move for dismissal of the § 2254
Petition as untimely-filed. (ECF No. 9.) For the reasons
stated herein, Respondents' motion will be granted, the
§ 2254 Petition shall be dismissed with prejudice, and
no certificate of appealability shall issue. Petitioner's
motion for pro bono counsel (at ECF No. 10) will be
denied as moot.
is currently incarcerated at Edna Mahan Correctional Facility
in Clinton, New Jersey, where she is serving a 25-year
sentence after being convicted in New Jersey Superior Court
of first degree aggravated manslaughter; unlawful possession
of a weapon; and possession of a weapon for an unlawful
purpose. (See Nov. 30, 2005 Am. J. of Conviction,
ECF No. 9-7.) Petitioner was convicted of the two weapons
charges by a jury; she pled guilty to the manslaughter charge
on April 30, 2004, after ten members of that same jury voted
to find her guilty of murder and two other jurors instead
voted to convict her of the lesser crime of manslaughter.
State v. Kendall, No. A-0027-14T2, 2017 WL 1282728,
at *1 ( N.J.Super.Ct.App.Div. Apr. 6, 2017). Petitioner's
judgment of conviction was filed on November 30, 2005. (ECF
2004 and 2012, Petitioner “actively pursued [multiple]
appeals of her sentence and [also pursued an appeal of] the
[trial court's July 2, 2008] denial of [Petitioner's
later-filed] petition to withdraw her guilty plea.”
Kendall, 2017 WL 1282728, at *1. The “[New
Jersey] Supreme Court [ultimately] denied certification on
the final iteration of [Petitioner's] direct appeal on
April 9, 2012.” (Resp'ts' June 27, 2018 Br. in
Supp. of Mot. to Dismiss, ECF No. 9-1 at PageID: 88;
accord Pet'r's Aug. 6, 2018 Br. in Opp. to
Mot. to Dismiss, ECF No. 11 at PageID: 153; see also
Apr. 9, 2012 Order of N.J. Sup. Ct. Den. Cert., ECF No.
thereafter initiated post-conviction relief
(“PCR”) proceedings in New Jersey Superior Court,
Law Division (the “PCR court”) via the filing of
her first PCR petition on May 1, 2012. See,
e.g., State v. Kendall, No. 03-01-0036,
slip op. at 6 ( N.J.Super. Ct. Law Div. Feb. 4, 2014)
(available at ECF No. 9-14). On February 4, 2014, the PCR
court denied post-conviction relief to Petitioner because
Petitioner's original PCR petition was not filed
“within five years after rendition of the [November 30,
2005 judgment of conviction] sought to be
attacked.” Id. at 5 (quoting N.J. Ct. R.
3:22-12(a)). The Appellate Division of the New Jersey
Superior Court affirmed “essentially for the reasons
stated in [the PCR court's] thorough and thoughtful
decision.” State v. Kendall, No. A-0027-14T2,
2017 WL 1282728, at *1 ( N.J.Super.Ct.App.Div. Apr. 6, 2017).
On September 25, 2017, the New Jersey Supreme Court denied
Petitioner's petition for certification of her PCR
appeal. (ECF No. 9-16.)
November 17, 2017, Petitioner initiated the present action.
(See ECF No. 1.) Petitioner filed her relevant
§ 2254 Petition on or about March 9, 2018. (ECF No.
3-1.) On June 27, 2018, Respondents filed the present motion
to dismiss the § 2254 Petition on timeliness grounds.
(ECF No. 9.) Petitioner filed opposition to Respondents'
motion on August 6, 2018. (ECF No. 11.)
LEGAL STANDARD AND ANALYSIS
The § 2254 Petition Is Untimely Under AEDPA
Antiterrorism and Effective Death Penalty Act of 1996
(‘AEDPA'), Pub. L. No. 104-132, 110 Stat. 1218,
generally mandates that petitions for writ of habeas corpus
be filed within one year after the conclusion of direct
appellate review[.]” Engel v. Hendricks, 153
Fed.Appx. 111, 112 (3d Cir. 2005); accord Ross v.
Varano, 712 F.3d 784, 798 (3d Cir. 2013); see
also 28 U.S.C. § 2244(d)(1)(A) (“A [one-year]
period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the
judgment of a [State court]. The limitation period shall run
from . . . the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review”).
record in this matter conclusively demonstrates that (1) the
New Jersey Supreme Court denied certification of the final
iteration of Petitioner's direct appeal on April 9, 2012
(see ECF No. 9-12); and that (2) Petitioner did not
thereafter file a petition for certiorari in the United
States Supreme Court. Petitioner's conviction therefore
became final ninety days later on July 8, 2012, when
Petitioner's time to file the certiorari petition
expired. See Ross, 712 F.3d at 798 (3d
Cir. 2013); see also Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 84 (3d Cir. 2013).
such, in the absence of equitable or statutory tolling,
Petitioner was required under AEDPA to file her § 2254
Petition by July 8, 2013. See 28 U.S.C. §
2244(d)(1)(A). Petitioner, however, filed her original habeas
petition on November 17, 2017, more than four years
“after the conclusion of direct appellate
review[.]” Engel, 153 Fed.Appx. at 112.
Petitioner's § 2254 Petition is therefore per
se untimely under AEDPA.
The § 2254 Petition is Not Entitled to Statutory ...